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Denova v. Ocwen Loan Servicing

United States District Court, M.D. Florida, Tampa Division

September 24, 2019

DENISE DENOVA, Plaintiff,
v.
OCWEN LOAN SERVICING, Defendant.

          ORDER

          STEVEN D. MERRYDAY, UNITED STATES DISTRICT JUDGE

         Denise DeNova alleges (Doc. 2) that between April 2013 and May 2016, Ocwen Loan Servicing, attempting to collect DeNova’s delinquent mortgage, used an “Aspect predictive dialing system” to call DeNova’s cellular telephone 1, 645 times. (Doc. 67-4) DeNova sues Ocwen (1) under the Telephone Consumer Protection Act (TCPA), which prohibits “using any automatic telephone dialing system or an artificial or prerecorded voice” to call a cellular telephone (Count VII) and (2) under the Florida Consumer Collection Practices Act (FCCPA) and the Fair Debt Collection Practices Act (FDCPA), both of which prohibit a debt collector from employing abusive or harassing collection tactics (Counts I–II, V–VI) and from attempting to collect a debt from a person represented by an attorney (Counts III–IV). DeNova and Ocwen move (Docs. 42, 43) for summary judgment.

         A July 26, 2019 report and recommendation (Doc. 85) finds (1) that Ocwen’s Aspect system constitutes an “automatic telephone dialing system;” (2) that Ocwen 152 times called DeNova using a “prerecorded voice” under the TCPA; (3) that the FDCPA’s one-year statutory limitation bars DeNova from recovering for the 1, 374 calls placed before February 1, 2016, and that the FCCPA’s two-year statutory limitation bars DeNova from recovering for the 815 calls placed before February 1, 2015; and (4) that a genuine factual dispute remains about whether Ocwen called with a harassing frequency, whether Ocwen knew DeNova had retained an attorney, and whether DeNova revoked consent to receive debt-collection calls. Accordingly, the July 26 report recommends granting-in-part Ocwen’s motion for summary judgment and denying DeNova’s motion for summary judgment. (Doc. 85 at 36–37)

         DISCUSSION

         Ocwen’s TCPA Objection

         Ocwen objects (1) that ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), invalidates the declaratory rulings on which the report relies and (2) that - assuming the invalidity of the FCC regulations - Ocwen’s Aspect system does not constitute an automatic telephone dialing system under the TCPA.

         i. Whether ACA International invalidates the FCC’s interpretation of an ATDS

         Under 47 U.S.C. § 227(b)(1)(A)(iii), a person may not “make any call . . . using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any . . . telephone number assigned to a . . . cellular telephone service.” Section 227(a)(1) defines an “automatic telephone dialing system” (ATDS) as “equipment which has the capacity - (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”

         Section 227(b)(2) grants the FCC the authority to promulgate regulations implementing the TCPA. In a 2003 declaratory ruling, the FCC defined ATDS to include a “predictive dialer, ” described as “equipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales agent will be available to take calls.” 18 FCC Rcd. 14014, 14091–92. A predictive dialer, such as Ocwen’s Aspect system, employs an algorithm “to ensure that when a consumer answers the phone, a sales person is available to take the call.” 18 FCC Rcd. 14014, 14091–92. However, a predictive dialer lacks the capacity to generate telephone numbers and instead calls from a pre-determined list. The 2003 declaratory ruling finds that, because a predictive dialer can automatically “dial thousands of numbers in a short period of time, ” the exclusion of a predictive dialer from the definition of an ATDS “would lead to an unintended result.” 18 FCC Rcd. 14014, 14092. Accordingly, the 2003 declaratory ruling concludes that a predictive dialer constitutes an ATDS even if unable to generate random telephone numbers. 18 FCC Rcd. 14014, 14092.

         In 2008 the FCC affirmed the 2003 declaratory ruling. 23 FCC Rcd. 559, 566. And in 2015 the FCC affirmed both the 2003 and 2008 declaratory rulings and “the notion that a device can be considered an autodialer even if it has no capacity itself to generate random or sequential numbers (and instead can only dial from an externally supplied set of numbers).” 30 FCC Rcd. 7961, 7971–72.

         Addressing a consolidated challenge[1] to the 2015 declaratory ruling, ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018) (Srinivasan, J.), holds that the ruling contains contradictory guidance and vacates as arbitrary and capricious the FCC’s determination about the capacity a system must possess to constitute an ATDS. The 2003, 2008, and 2015 declaratory rulings state that to constitute an ATDS a system must “generate and then dial ‘random or sequential numbers.’” However, the 2003, 2008, and 2015 declaratory rulings state elsewhere that a predictive dialer constitutes an ATDS even if unable to generate random or sequential numbers. Analyzing this conflicting guidance, ACA International concludes:

So which is it: does a device qualify as an ATDS only if it can generate random or sequential numbers to be dialed, or can it so qualify even if it lacks that capacity? The 2015 ruling, while speaking to the question in several ways, gives no clear answer (and in fact seems to give both answers). It might be permissible for the Commission to adopt either interpretation. But the Commission cannot, consistent with reasoned decisionmaking, espouse both competing interpretations in the same order.

ACA International, 885 F.3d at 703. Accordingly, ACA International “set[s] aside the [FCC’s] treatment of those matters.”

         Noting a split of authority about whether ACA International vacates the 2003 and 2008 declaratory rulings on which the 2015 declaratory ruling relies, the R&R determines that the pre-2015 declaratory rulings remain valid and that the 2003 and 2008 declaratory rulings, which define an ATDS to ...


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